PLAINTIFFS' MOTION TO COMPEL FURTHER TESTIMONY AND FURTHER
PRODUCTION OF DOCUMENTS FROM HAROLD ICKES, FOR APPOINTMENT OF A
SPECIAL MASTER, FOR CRIMINAL CONTEMPT AND PERJURY PROCEEDINGS,
AND FOR SANCTIONS, INCLUDING ATTORNEYS FEES AND COSTS

Plaintiffs, by counsel, respectfully submit this Motion to Compel Further Testimony and Further
Production of Documents from Harold Ickes, for Appointment of a Special Master, for Criminal
Contempt and Perjury Proceedings, and for Sanctions, Including Attorneys Fees and Costs. Plaintiffs
request that sanctions be imposed upon Ickes and his counsel. As grounds therefore, Plaintiffs state as
follows:

MEMORANDUM OF LAW

I. INTRODUCTION.

A. Summary of Ickes' Misconduct and the Relief Sought.

Plaintiffs' counsel deposed Harold Ickes for less than six hours on May 21, 1998, wherein Ickes
said he "does not remember" or "I don't recall" or similar statements of memory loss, approximately 84
times, an average of once every four minutes!(1) On other occasions his responses bordered on feigned
memory loss and/or were clearly evasive, making his memory/non-responsive condition occur over one
every one and a half minutes during the deposition, for a total of 264 times.

There were many reasons to obtain his testimony. The Filegate scandal became public in
May/June 1996.(2) During most of the Filegate period, Ickes was Deputy Chief of Staff and Assistant to
the President from late 1993 to January 20, 1997.(3) His duties were to "assist the President in whatever
way he wanted."(4) Ickes "reported directly to the Chief of Staff (Thomas "Mack" McLarty and later
Leon Panetta), but there were times when he "dealt directly with the President."(5) Ickes testified that as
part of his job he "had a lot, a lot under [his] purview" and the FBI files matter "was but one of them,
and it was an important issue."(6) Ickes further testified that when he left the White House around January
20, 1997,(7) he took "35 to 50 or so boxes"(8) of documents from the White House with him. Ickes said
he boxed the documents himself and nobody checked them before he removed them.(9) In addition, Ickes
has been doing "volunteer" work for the President's lawyer on the Clinton scandals,(10) which involves
the Clinton Department of Defense's violation of Linda Tripp's privacy rights, a subject this Court has
ruled relevant to this case.(11)

The tactics employed by Ickes at his deposition were consistent with the obstructionist strategy
used by the Clinton Administration throughout this litigation and the many other scandals in which it is
embroiled. In a display even more egregious than that for which George Stephanopoulos was found to
have been untruthful and sanctioned by this Court,(12) Ickes failed to conduct a proper document search
in response to a subpoena duces tecum. He completely failed to search one location and refused to say
whether he searched another location. He also claims to have had his attorney search an estimated 50
boxes of documents he improperly removed from the White House and then he improperly asserted
attorney-client privilege to prevent any meaningful examination of his attorney's search.

Ickes also committed perjury by falsely claiming memory loss in response to numerous questions
regarding the FBI files, the Clinton DoD's violation of Linda Tripp's privacy, his suspicious dinner with
Kenneth Bacon (the Clinton political appointee at the DoD who helped orchestrate the release of Ms.
Tripp's information), and his discussions with Clinton Administration officials and Mrs. Clinton. Ickes
should have been able to answer these questions because of his high-level position during the Filegate
period and his work for one of the President's attorneys to conduct damage control by keeping "a very
close track on" the Clinton scandals in the press and exchanging information with the press.(13)

Additionally, Ickes was improperly prevented from answering questions about a conversation
he had with President Clinton about Kathleen Willey, whose privacy rights were violated when the White
House released letters from her government file to the media.(14)

Ickes' conduct requires that Plaintiffs seek relief from this Court. Plaintiffs respectfully request
that Ickes be ordered to produce to a special master appointed by the Court, at Ickes' expense: 1) all
of the documents he removed from the White House, 2) those stored at the location he failed to search,
and 3) those stored at the location about which he failed to say whether he searched, so that relevant,
non-privileged documents can be produced to Plaintiffs. Plaintiffs also request that he, and possibly
others, be ordered to give further testimony about any new document search he conducts that will allow
Plaintiffs to question under oath whoever does the search. In the event that new documents are
produced to Plaintiffs, Ickes should be ordered to submit to further deposition questioning about those
documents.

Additionally, the Court respectfully should find that Ickes' testimony of memory loss is not
believable and is untruthful and he should be ordered to submit for redeposition. The Court also should
institute criminal contempt and perjury proceedings.

Additionally, Ickes also should be ordered to answer questions about his conversation with
President Clinton regarding Kathleen Willey.

Finally, the Court should award Plaintiffs attorneys fees and costs for the first and second Ickes
depositions, additional document review, as well as attorneys fees and costs for the preparation and filing
of this motion.

B. The Clinton Administration has Engaged in a Pattern of Privacy Violations.

Ickes' improper conduct must be analyzed within the context of this case. For a detailed
discussion about the history of Filegate, the Court is respectfully referred to pages 1-16 of Plaintiffs'
Motion to Compel Further Testimony and Further Production of Documents from Kenneth Bacon, filed
on August 18, 1998.

II. DISCUSSION.

A. Ickes Should be Ordered to Conduct a Reasonable Search of his Documents That
Plaintiffs Can Verify Under Oath So That a Special Master Can Review All of the
Documents.

Ickes' document search clearly was inadequate. He admitted that he completely failed to search
two locations under his control and he delegated responsibility to his attorney for searching an estimated
50 boxes of documents he removed from the White House, who then improperly prevented Plaintiffs
from learning enough details about his attorney's search to ensure it was reasonable. Ickes' failure to
search for responsive documents is reminiscent of this Court's ruling that because George
Stephanopoulos' "search for documents was inadequate," and Mr. Stephanopoulos' testimony was "not
truthful," he had to conduct a "reasonable" search.(15)

For the first location, a residence in Salt Air, on Fire Island, New York, despite being unsure
about whether he had documents from his Clinton campaign and White House work at the location,
Ickes testified that he did not search there in response to Plaintiffs' subpoena(16) even though he agreed
he uses the residence as "a kind of a get away place," in addition to renting it out.(17)

For the second location, Ickes testified that he lived at an apartment at 16 West 77th St., in New
York City during the 1992 primary campaign that he later rented to somebody else in the summer of
1994 when he was living in Washington, D.C.(18) Ickes testified that he had some documents in that
apartment from prior work experiences up to the time he rented it(19) and he put some of those documents
in a storage facility in the basement of that building.(20) However, when asked whether he searched "that
storage facility in response to Judicial Watch's subpoena,"(21) Ickes gave an evasive response describing
what he did with documents from the 1992 campaign.(22) Asked again if he searched "the documents in
the storage facility at 77th Street in New York to see if there were documents responsive to Judicial
Watch's subpoena,"(23) he again evasively failed to give a simple yes or no answer and instead said: "Well,
as I understand the subpoena, there would be no documents, to my knowledge, in that storage facility
other than documents pertaining to the 1992 campaign, and I've already answered that."(24) Plaintiffs'
counsel asked again: "But you did not search that facility."(25) Then Ickes' attorney interrupted in an
apparent effort to help Ickes avoid a direct answer:

MS. SABRIN: Again, I would like the record to reflect his testimony
which was that he, as you know, this is not the first subpoena Ickes has
ever received from anyone. Those documents were culled in response to
other subpoenas and obtained; and they are no longer in that facility. To
the extent that there are documents that would fall within the ambit of
this subpoena, they've been brought down a long time ago and that's
what he's testified to already.

MR. KLAYMAN: You are on notice with the prior deposition not to do
this, not to provide testimony. We will be moving for sanctions for this.
You're on notice, continuing notice that we will be moving. This is
inappropriate to provide testimony.(26)

Ickes then avoided giving a direct answer by rudely asking Plaintiffs' counsel about other court
cases in which Plaintiffs' counsel has been involved:

A: Do you always threaten people this way, Mr. Klayman? You're a big
threatener, I guess, uh?

Q: Are you threatening me, Ickes?

A: Huh-uh. [indicating negative] I was just asking you a question. I
mean I was reading with some degree of interest your sanctions by Judge
Chin that was upheld by the Second Circuit and your, for
mischaracterization and racial implications, and then you got sanctioned
out there in California, didn't you, before the District Central District
Court of California for --

Q: Anything else you'd like to say, Ickes?

A: No, no, no. I just -

Q: Get it off your chest.

A: No, no, no. For a fellow who runs around squawking about
sanctions, you ought to know a lot about them.

Q: Anything else you want to get off your chest?

A: I have nothing to get off my chest, Mr. Klayman. I just wanted to
note your expertise when it comes to sanctions, having been the subject
of sanctions yourself by pretty eminent courts.

Q: Well, Ickes, we will explore exactly how you learned about those
later.

Soon thereafter, Ickes was asked again if he searched the storage facility and then he and his
attorney responded by incorrectly claiming that the question had been asked and answered:

Q: Did you search that storage facility at 77th Street in response to
Judicial Watch's subpoena?

A: Asked and answered.

Q: You're refusing to answer?

A: Asked and answered.

MS. SABRIN: He's answered. Asked and answered.

MR. KLAYMAN: Certify it.

THE WITNESS: Asked and answered. Have the court reporter read it
back.

BY MR. KLAYMAN:

Q: I'm putting you on notice.

A: No, no, no.

Q: I'm putting you on notice.

A: Don't threaten me, first of all.

Q: I'm not threatening you. I'm putting you on notice.

A: I've asked the court reporter to read the record back because you're
certifying my alleged non-answer of a question that was asked and
answered and that you can't remember. Could you have the court
reporter read it back, please.

Q: No, no. We're not going to disrupt the deposition. I know what I
can remember, Ickes.

A: I want the court reporter to read it back for the record.

Q: We will conduct this deposition --

A: I have a right to that. You asked me a question. I'm asking the court
reporter to read it back.

Q: You never responded to my question whether you searched.

MS. SABRIN: He did respond. It's asked and answered.

THE WITNESS: Read it back. You can't remember what you asked.
That's your problem.

MR. KLAYMAN: I'll indulge you one more time, Ickes. Read it back.
Direct the court reporter where it is. This will not count against our
time, but yours.

(The reporter read the record as requested.)

BY MR. KLAYMAN:

Q: It's clear, Ickes, you didn't answer the question.

A: It's not clear that I didn't answer it.

Q: Why don't you just answer it now and we can move it along.

A: Go back and read the whole deposition.

Q: Why don't you just answer it again?

A: No. Let's go back and read the whole deposition.

Q: We can make it simple or we can play games. Let's try to make it
simple.

A: I'm not playing games. I'm not answering questions that I've already
answered, Mr. Klayman. I answered that question. It's on the record.
You can go back and read it.

Q: Well, it is on the record and you didn't answer it. So we'll certify that
one, too.

Contrary to the claims by Ickes and his attorney, Ickes never gave a direct yes or no answer to
the question about whether he searched that storage facility at 77th Street in response to Judicial Watch's
subpoena.

Additionally, both Ickes and his attorney made contradictory statements about the existence of
documents at that 77th Street storage facility. When Ickes was asked if he searched that facility,(29) his
attorney, Amy Sabrin, said:

MS. SABRIN: Again, I would like the record to reflect his testimony
which was that he, as you know, this is not the first subpoena Ickes has
ever received from anyone. Those documents were culled in response to
other subpoenas and obtained; and they are no longer in that facility. To
the extent that there are documents that would fall within the ambit of
this subpoena, they've been brought down a long time ago and that's what
he's testified to already.(30)

Yet, Ickes testified that he has not removed any documents from that facility:

Q: From the point that you moved the file cabinets with the documents
down to the storage facility to today, have you removed any documents
from that facility?

A: Not to the best of my recollection.

Q: So they're all there, everything that you moved.

A: I haven't seen it in a long time. Maybe an earthquake took it away.

Q: Do you have any knowledge whether there's been an earth quake in
New York City anytime in the last ten years?

A: A lot of things happen New York, you know. Water mains break.

MR. KLAYMAN: I'm providing notice, Ms. Sabrin, not to move those
documents, not to alter those documents, not to do anything with those
documents. We will be requesting court intervention.(31)

Thus, Plaintiffs are confronted with Ickes' refusal to say whether he searched the 77th Street
storage facility in response to the subpoena and contradictory statements by Ickes and his attorney about
whether any documents have been removed from that facility.

Additionally, the reasonableness of Ickes' search of documents he removed from the White
House could not be verified because he delegated responsibility for that search to his attorney who then
improperly prevented Plaintiffs from learning enough details about the search to insure it was reasonable.
Ickes testified that when he left the White House around January 20, 1997,(32) he took "35 to 50 or so
boxes"(33) of documents from the White House with him. Ickes boxed the documents himself and nobody
checked them before he removed them.(34) He claims to have "subsequently . . . turned virtually every box
over to Ms. Sabrin and Mr. [Robert] Bennett [his attorneys],"(35) and another attorney, "Ms. Arbab," all
attorneys at Skadden Arps, one of the law firms defending the President.(36) (Ickes testified that the boxes
he failed to give to his attorneys went to his house(37) and that he searched his house in response to the
subpoena.(38)) When asked if he searched the documents he gave to his attorneys in response to Judicial
Watch's subpoena, he answered: "No, I did not."(39) He testified: "My counsel informed me that she
searched."(40) Ms. Sabrin said, "He's told you that he left it to me to search."(41) Ickes testified that the
documents "were delivered to my lawyer so that they could make the judgment as to what was
responsive or not."(42)

However, Plaintiffs' counsel was prevented from learning facts that would enable them to assess
the reasonableness of the search. Although Ms. Sabrin said, "I am telling you for the record that we
have produced any responsive, non-objectionable documents that were in those files to you today,"(43) she
was not under oath and she prevented Ickes from answering the question: "Did she show you whether
or not or did she tell you whether or not she found documents that are responsive to Judicial Watch's
subpoena?"(44) Ms. Sabrin objected on the basis of attorney-client privilege and said, "you're not entitled
to know my conversations with my client, no matter what the subject matter of them was."(45) Therefore,
Plaintiffs were prevented from obtaining any testimony under oath by which they could assess the
reasonableness of his attorneys' search of the documents Ickes removed from the Clinton White House.

In ordering George Stephanopoulos to conduct a reasonable search for responsive documents,
this Court said: "[A]n individual served with a subpoena duces tecum has an obligation to conduct a
reasonable search to ensure that non-privileged documents that are relevant or likely to lead to the
discovery of admissible evidence are produced."(46)

Ickes clearly failed to fulfill his obligation under the subpoena. Ickes admitted that neither he nor
anybody on his behalf, searched for documents in response to Plaintiffs' subpoena at his Fire Island, New
York residence and he failed to say whether he searched a storage facility at 16 West 77th Street, New
York City. With regard to the estimated 50 boxes of documents Ickes removed from the White House
and gave to his attorneys to search in response to the subpoena, Plaintiffs do not dispute his right to
delegate the search function to others, including his attorneys; but he cannot delegate the responsibility.
Ultimately, Ickes remains responsible for complying with the subpoena and he cannot extinguish his
obligation to conduct a reasonable search by delegating the search function.

Moreover, Plaintiffs are entitled to inquire about the reasonableness of the search by obtaining
testimony under oath by those who conducted it. Federal Rule of Civil Procedure 26(b)(1) states that
parties "may obtain discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action . . . including the existence, description, nature, custody, condition,
and location of any books, documents, or other tangible things…" Without such testimony Plaintiffs
have no way to know whether Ickes' obligation under the subpoena was fulfilled.

This is true even if the search was conducted by Ickes' attorney. Any other rule would allow
Ickes unilaterally to extinguish Plaintiffs' right to testimony about the search, leaving them with no
evidence upon which to assess the reasonableness of the search. Accordingly, even if otherwise
protected attorney-client communications were involved, to the extent that revelation of the content of
those communications is necessary for Plaintiffs to learn the scope and details of the attorney's document
search, Ickes is estopped from asserting, or has waived the attorney-client privilege. Otherwise, Ickes
could avoid scrutiny of his search simply be delegating the search function to his attorney, thus
unilaterally extinguishing Plaintiffs' right to testimony about the search.

However, even without any waiver or estoppel, any claim of attorney-client privilege by Ickes
in this regard is unfounded. The burden is on the claimant to demonstrate with reasonable certainty that
the privilege applies(47) and to be a protected attorney-client communication, it must be shown "that the
lawyer's communication rested in a significant and inseparable part on the client's confidential
disclosure."(48) Thus, Ms. Sabrin was incorrect when she objected on the basis of attorney-client privilege
and said, "you're not entitled to know my conversations with my client, no matter what the subject
matter of them was."(49) Clearly, the attorney-client privilege does not protect all attorney-client
communications.

Furthermore, Ms. Sabrin would not let Ickes answer the question: "Did she show you whether
or not or did she tell you whether or not she found documents that are responsive to Judicial Watch's
subpoena?"(50) Yet, this question did not require Ickes to reveal an attorney-client communication that
would disclose any confidential fact Ickes told his attorney. All that would be revealed is whether Ickes
was told by his attorney whether or not she found responsive documents. That question only required
a simple yes or no answer. Ickes had not even been asked what his attorney specifically said about
whether or not she had found any responsive documents. But even that communication would not be
protected by the privilege because it would not reveal any confidential fact communicated by Ickes to
his attorney. So there is no basis for assertion of the attorney-client privilege here.

The same is true of another question Ms. Sabrin prevented Ickes from answering on the grounds
of attorney-client privilege: "Did you go through the various document requests in the subpoena with
your counsel?"(51) This question did not call for the substance any attorney-client discussion.

The appointment of a special master would be appropriate here. Given Ickes' deliberate refusal
to obey the subpoena and his feigned memory loss, as described below, it is clear that he cannot be
trusted to do a reasonable search and produce the appropriate documents. Pursuant to Federal Rule of
Civil Procedure 53, the Court can appoint a special master to review "complex document production"
which is "an instance of the 'unusual discovery' that has been widely recognized as constituting an
exceptional condition within the ambit of Rule 53(b)."(52) Plaintiffs respectfully request that such a master
be appointed, at Ickes' expense, to review all of Ickes' documents and report to the Court about what
should be produced.

B. Feigned Memory Loss Can be Perjury When Proven by Circumstantial Evidence.

Ickes claimed a memory loss in response to numerous questions regarding the FBI files, the
illegal release of Linda Tripp's private information by the Clinton DoD, his suspicious dinner with
Kenneth Bacon and his discussions with Clinton Administration officials and Mrs. Clinton about the
Clinton Administration scandals. Ickes was not telling the truth when he claimed a lack of memory in
response to these questions. The questions asked for information that any person with an average
memory should have been able to answer. Ickes testified that he was not under the influence of any
drugs that would impair his memory and had no problem with his memory.(53) Yet, Ickes testified he
"does not remember" or "I don't recall" or similar statements of memory loss, approximately 84 times
in his 6-hour deposition, an average of once every four minutes!(54) On other occasions his responses
bordered on feigned memory loss and/or were clearly evasive, making his memory/non-responsive
condition occur over one every one and a half minutes during the deposition, for a total of 264 times.

1. Perjury Based Upon Feigned Memory Loss Can be Proven by Circumstantial
Evidence.

Feigned memory loss is perjury. The D.C. Circuit Court of Appeals upheld such a perjury
conviction and explained how it was based upon circumstantial evidence:

Of course, in the absence of a statement by the defendant, the falsity of
an "I don't recall" answer must be proven by circumstantial evidence.
This does not mean that proof is impossible. As another court has stated,
"The jury must infer the state of a man's mind from the things he says and
does. Such an inference may come from proof of the objective falsity
itself, from proof of a motive to lie, and from other facts tending to show
that the defendant really knew the things he claimed not to know" or
recall. United States v. Sweig, 441 F.2d 114, 117 (2nd Cir. 1971), cert.
denied, 403 U.S. 932, 91 S.Ct. 2256 (1971); see American
Communications Ass'n v. Douds, 339 U.S. 382, 411, 70 S.Ct. 6745
(1950); Gebbhard v. United States, supra, 422 F.2d at 287-88.(55)

Accordingly, in another case, the Honorable Royce C. Lamberth warned a witness who claimed
she did not remember her sexual-harassment complaints that she could be committing perjury.(56) Even
though the events occurred more than a decade before her testimony, the fact that she had originally
prepared memoranda explaining the complaints in detail and was later shown copies of those memoranda
in court to refresh her recollection, all rendered her claims of not remembering simply unbelievable.(57)

There are numerous examples of circumstances that justified a finding of perjury for feigned
memory loss.

In U.S. v. Becker,(58) on the trial judge's own motion the District Attorney was directed to
investigate a witness' testimony as suspicious because she was a "very equivocal witness with a
convenient memory."(59) She was then found guilty of perjury.

In U.S. v. Cohn(60), because a grand jury witness' claim that he could not recall a crucial letter and
envelope or any of the surrounding circumstances was thought to be false, he was convicted of perjury
and obstruction of justice.

In U.S. v. Alo,(61) the conviction of a witness before the Securities and Exchange and Commission
for obstruction of justice was upheld, in part, because the witness "pleaded a memory lapse some 134
times in one and a half hour's testimony."(62)

In U.S. v. Alu,(63) a witness' claim that he didn't remember meeting a particular person was found
to be false after testimony from that person describing the witness' visits to that person's home.

In Ex parte Hudgings,(64) a trial judge summarily found a businessman in contempt for refusing
to authenticate handwriting and claiming he was unable to remember ever seeing his business partner
write anything. After testimony showing the "wide field" of business activities in which the partners had
cooperated together over a long period, the trial judge believed the businessman's claimed memory loss
was feigned.(65)

In Matter of Sinadinos,(66) a grand jury witness' claimed lack of memory appeared too convenient
because the witness exhibited a good memory on other topics. After receiving use immunity and
testifying generally about his own life and gambling activities (answering "I don't remember" to some
questions):

Sinadinos rebuffed most efforts to obtain information about his dealings
with others in any gambling operations. In response to more than 60
questions about his professional affiliations Sinadinos repeated the words:
"I've been advised by my psychiatrist that my memory is exceedingly
poor due to many years of medication. For that reason I must
respectfully decline to answer that question because I don't feel confident
that I can recall enough to speak the truth."(67)

The court found: "The pattern of Sinadinos' invocation of anxiety about his memory casts doubt
on the bona fides of the claim. He invoked the formula about the psychiatrist with suspicious selectivity
when the questions led toward his associates."(68) For example, Sinadinos testified with precision about
his meetings with a Mr. Mele concerning time periods far in the past and also in recent months, but was
unable to recall the relevant time period in between.(69)

In Behrle v. U.S.,(70) the claimed lack of memory was unbelievable because so little time elapsed
since the events about which the witness was questioned. The passage of only 3 weeks between a
witness' grand jury testimony in which he remembered seeing a shooting incident and his trial testimony
in which he claimed that he "remembered nothing" was sufficient circumstantial evidence to convict that
witness for perjury: "Direct proof that he did not remember was impossible. The circumstantial evidence
that he must have remembered was, if believed, enough to overcome the presumption of innocence and
to leave no reasonable doubt of guilt."(71)

The noteworthy nature of events can make it implausible that a witness would have forgotten
such events. In U.S. v. Moreno Morales,(72) the jury was entitled to infer that it was highly improbable
"given the enormity of the events" that incidents surrounding a terrorist shoot-out on a hillside, killing
many, had been forgotten. The jury's finding that the witness had committed perjury by claiming he did
not remember seeing some of the terrorists during a crucial period of time was upheld.

The trial judge in In re Bongiorno,(73) found more than 50 testimonial statements of "I don't
recall" or similar statements to be implausible. Bongiorno testified before a grand jury under a grant of
immunity and the court was most concerned with the witness' failure to remember meetings with an
alleged conspirator even after being shown several photographs of himself frequenting a certain bar with
the alleged conspirator.

Even a claim of "to the best of my recollection" can constitute perjury. In U.S. v. McMahon,(74)
a defendant on trial for extortion and conspiracy was later convicted of perjury because he had testified
that "to the best of my recollection" a particular co-conspirator never called him at his office during one
time period and only four times in a second time period. In light of contradictory testimony from that
co-conspirator supported by telephone records, the defendant's claim of "to the best of my
recollection," was found to be false.

A witness' demeanor (which in this case can be observed on videotape as well as gleaned from
the written testimony) can constitute persuasive evidence that memory loss is feigned. In In re
Schulman,(75) the demeanor of a person who filed for bankruptcy showed that the "whole attitude of the
bankrupt in the entire proceeding is that of contempt of this court and of its authority, and a deliberate
determination to conceal from his creditors all the material facts within his knowledge…." The witness
had merely been vague and "on very numerous occasions" testified "I don't remember" - "the stock
phrase of the prevaricator." Likewise, in Martin-Trigona v. Gouletas,(76) the court stated:

Questions concerning the credibility of the witness are by their very
nature questions for the trier of fact. In this case, ample reason existed
for Judge Decker to discredit as feigned Trigona's claims of lack of
memory or knowledge. Judge Decker had the opportunity--which this
court does not--to observe the demeanor of the witness while on the
stand and to thus assess his credibility."

2. Ickes' Alleged Memory Loss was Feigned.

Ickes' claims of memory loss related to Filegate events and conversations occurring while he was
Deputy Chief of Staff and Assistant to the President are not credible given the nature of his duties, the
importance of the conversations and the high level in the Clinton White House at which they occurred.
The instances of Ickes' alleged memory loss are consistent with examples from the case law and the
circumstances show that his memory loss was feigned.

(1) Ickes testified that when the FBI files matter first became public, he and White House
Counsels Jane Sherburne and Jack Quinn recommended to then Chief of Staff Leon Panetta that
somebody other than the White House investigate the FBI files matter.(77) Ickes testified that after his
meeting with Leon Panetta he "participated" in a "few" discussions about Filegate with others at the
White House,(78) but he could not recall "with any precision when, where they were, who participated in
them, or what was said."(79)

Obviously, since these discussions were about the FBI files that are the subject of this lawsuit,
these discussions are directly relevant to this case. The details about these discussions likely include
incriminating information that has been successfully hidden by the Clinton Administration.

Ickes claimed loss of memory is not credible. He was Deputy Chief of Staff and Assistant to the
President from late 1993 to January 20, 1997,(80) during which time much of Filegate occurred and was later made public in May/June 1996, after an
imminent contempt of Congress vote forced the White House Counsel's office to belatedly produce
subpoenaed documents that included the FBI file of Billy Dale that was improperly requested by the
White House long after it fired him and the other White House Travel Office workers.(81) The Filegate matter was heavily covered by the media and both the House and Senate conducted
investigations with televised hearings. It was a major White House scandal in which FBI Director Louis
Freeh said that this file transfer and acquisition was an "egregious violation of privacy" and that the FBI
had been "victimized" by the Clinton Administration while the FBI said the transfer and acquisition was
"without justification."(82) The scandal became public in the middle of the 1996 Presidential election(83) and therefore must have been viewed by the White House as a potential obstacle to President Clinton's
re-election. This was likely to interest Ickes since he was very active in the President's election
campaigns(84) and "basically ran the New York State Primary for" candidate Clinton in 1992.(85) Ickes admits that he had these discussions about Filegate and the subject matter is such that anybody
with a normal memory would remember who participated in these discussions and what was said. His
claimed failure to remember these facts cannot be believed.

(2) When asked if he "discussed the Filegate controversy with Mrs. Clinton,"(86) Ickes replied
that he "may have"(87) and "I'm not saying I didn't talk to her about it, but I have no specific recollection
of talking to her about it"(88) and "I don't even have a general recollection. I couldn't give you a time,
place, date."(89) When asked if he discussed with Mrs. Clinton "who recommended Craig Livingstone"
for his job at the White House Office of Personnel Security, Ickes testified: "I don't think so. Craig was
not somebody that I talked a lot about. I may have had passing conversation with Mrs. Clinton about
him, but I for the life of me, I can't recall what it was either specifically or generally as we sit here today
under oath."(90)

Mrs. Clinton is a defendant in this lawsuit, so conversations about Filegate in which she
participated are directly relevant to this case. If Ickes were to tell the truth about these conversations,
he might reveal incriminating information about Mrs. Clinton.

Ickes' claimed lack of memory is not credible. As described above, Filegate was a major White
House scandal. Moreover, Mrs. Clinton was seriously implicated in hiring Craig Livingstone, the man
at the center of the scandal, and then being deceitful about it. Mrs. Clinton said in 1996, "I did not have
anything to do with his being hired, and I do not remember even meeting him until sometime in the last
year."(91) However, FBI agent Dennis Sculimbrene's contemporaneous notes of a March 1993 interview
with Bernard Nussbaum quote Nussbaum as saying that Livingstone "had come highly recommended
to him by HILLARY CLINTON"(92) and that Mrs. Clinton "has known his mother for a longer period of
time."(93) Another FBI agent, Gary Aldrich, testified that Deputy White House Counsel William Kennedy
told him that "Hillary wants him [Livingstone] for that slot."(94) Gina Gibson, a White House intern who
worked with Livingstone from May to July of 1994, told the House Committee that when she was being
shown around the White House, she saw Mrs. Clinton say "Hello Craig" to Livingstone.(95) When asked
about the charge that Mrs. Clinton was the mastermind of Filegate, Ickes testified that, "God, the
newspapers were writing about it all over hell's half-acre."(96) Given the evidence of her role in hiring
Craig Livingstone, the media coverage of her role and the attempt to hide that role, Ickes' claim of
memory loss regarding his discussions with her are unbelievable.

(3) White House Counsel Jane Sherburne wrote a document entitled "Task List" dated
December 13, 1994 and marked "JCS Privileged."(97) It described thirty-nine of the Clinton scandals,
including at least one that did not become public until mid-1996: "Security/Livingstone issues."(98) Ickes
testified that during that time he met with Ms. Sherburne "on a fairly regular basis."(99) Yet, when asked
at his deposition if he ever saw the document before, Ickes said: "Well, as I sit here today I don't have
a specific recollection of it. If it came from my files, I probably saw it."(100)

This document is directly relevant to this lawsuit. Ms. Sherburne's mention of Livingstone (a
defendant in this lawsuit) approximately 18 months before Filegate was made public raises serious
questions about the extent of the White House cover-up of the illegal conduct at the heart of the scandal.
Any early knowledge of this document by Ickes would likely indicate his participation in the cover-up,
if not the original illegal acquisition of the files.

Ickes testimony is not credible. The Sherburne Task List is monumental in scope, especially
considering it was written in December 1994. Anybody with a normal memory would likely have a
definite memory of whether or not they had seen this document. Even if Ickes did not see the Task List
from somebody in the White House, despite his regular meetings with Ms. Sherburne, it is very likely
Ickes saw the List when it was published by the Wall Street Journal on September 6, 1996.

(4) When asked if he "had conversations with Jane Sherburne about Craig Livingstone," Ickes
answered, "I can't recall the specifics, Mr. Klayman, but I probably did."(101) When asked, "What did you
discuss?" he stated, "I don't recall."(102)

The content of these discussions is directly relevant to this case. Livingstone was at the heart
of this scandal and is a defendant in the case. Ms. Sherburne wrote about a problem with
"Security/Livingstone issues" 18 months before the scandal was made public. Ms. Sherburne could have
shared important information with Ickes that has yet to be made public.

Ickes' testimony is not credible. Given the enormity of the Filegate scandal, including the
resulting televised Congressional hearings, its election-year timing, the prominence of Livingstone's role
in Filegate, the evidence of a cover-up of Mrs. Clinton's role in hiring Livingstone, Ickes' job as Deputy
Chief of Staff and Assistant to the President during the Filegate scandal and Ickes' regular meetings with
Ms. Sherburne, Ickes would know for sure whether or not he discussed Livingstone with Ms. Sherburne
and would not have to hedge by using the word "probably." Given these facts, Ickes likely remembers
what he discussed with Ms. Sherburne about Livingstone and his "I don't recall" answer is not
believable.

(5) When asked if he ever discussed "whether FBI files were taken out of Foster's office with
anyone up to today," Ickes answered, "I may have."(103) Then after he was asked, "Who did you discuss
it with?" Ickes answered: "I don't recall. I had thousands of conversations, Mr. Klayman, over the
years, thousands, a lot of conversation."(104)

This question seeks information directly relevant to this case. Vincent Foster was Deputy White
House Counsel under defendant former White House Counsel Bernard Nussbaum. It is standard
procedure for the White House Counsel's office to review FBI files of White House employees and
others needing access to the White House.(105) Ken Starr's office has not closed its investigation into the
improper removal of documents from Mr. Foster's office after his death on July 20, 1993. It is an open
question whether any improperly obtained FBI files were in Mr. Foster's office. Plaintiffs need to know
the chain of custody for their own FBI files and whether other FBI files were illegally acquired by the
White House. The person with whom Ickes "may have" discussed the removal of FBI files from Mr.
Foster's office could have significant information directly relevant to this action.

However, once again, Ickes' claimed memory loss is not credible. Given the extensive
controversy over Mr. Foster's 1993 death, the unusual circumstances surrounding the removal of
documents from his office and the FBI files scandal, common sense dictates that Ickes would be able to
recall with much more certainty than "I may have," whether or not he discussed if FBI files were taken
out of Mr. Foster's office and with whom he spoke about it.

(6) When asked if he has "ever been questioned about Filegate by independent counsel Ken
Starr's office" or by the House or Senate, Ickes testified: "Not that I recall. But I will tell you, Mr.
Klayman, I've been asked so many questions by so many different people in depositions and other legal
proceedings that I could not testify with any degree of accuracy whether I had never been asked about
it. I don't recall it."(106)

This question seeks information directly relevant to this case. Ickes may have given these
investigating bodies relevant information that Plaintiffs do not have. Plaintiffs are entitled to learn that
information. At a minimum, Plaintiffs are entitled to compare whatever information Ickes may have
given other investigating bodies with the information Ickes provided directly to Plaintiffs. Any
significant differences could reflect on Ickes credibility. Finally, if Ickes did provide information about
Filegate to any such investigative bodies and that information has not been published by those bodies,
Plaintiffs would not be able to learn about it other than by asking Ickes.

Ickes' answer is not credible. Given the facts of this scandal, the media coverage, the evidence
linking Mrs. Clinton to the hiring of Craig Livingstone and the significance of being questioned by the
OIC and the House and Senate, it is unbelievable that Ickes would not be able to definitively remember
whether these bodies had questioned him about Filegate.

(7) When asked if he "talked about any aspect of the Clinton scandals" with Mrs. Clinton during
his various meetings or conversations with her in the last months since January of 1998, Ickes testified
he's "sure that there have [sic] been passing reference to it," but that he "can't recall" it "with any
specificity" or "even recall with general specificity."(107)

The substance of Ickes' communications with Mrs. Clinton are very important, especially since
Mrs. Clinton is a defendant in this case. Plaintiffs need to discover whether Mrs. Clinton was helping
Ickes use the press to attack those she viewed as Clinton Administration adversaries by misusing
government files, such as occurred to Ms. Tripp.

Ickes' claim of memory loss is not credible. Mrs. Clinton was questioned in the White House
by Ken Starr's office around January of this year about the FBI files matter.(108) It is unlikely she failed
to discuss this meeting with Ickes, as she did with Madeleine Grunwald.(109)

Moreover, press reports show Mrs. Clinton's deep involvement in managing the Clinton
Administration's public relations response to the Lewinsky scandal. The Washington Post quoted Lisa
Caputo, Mrs. Clinton's former press secretary, who The Post said "has been in touch with" Mrs. Clinton
"in recent days," as saying that Mrs. Clinton was "in full battle mode" over the Lewinsky scandal.(110)The
Post further reported that "there were discussions that she [Mrs. Clinton] would be turning to some of
the veteran advisers - Carville, Harold Ickes, Michael Kantor and Harry Thomasson - who had helped
the Clintons to weather earlier scandals."(111)The Post also reported that just after the scandal became
public there was "an intense struggle between Clinton's lawyers and political aides" over how to respond
to the charges and "[w]ith Hillary Clinton leading the way, the political side eventually won."(112)
According to The Post, on January 26, 1998, a White House "strategy session with several political
consultants and advisers" was held that "focused, inevitably, on the sex scandal," and "Hillary Clinton,
as she has been at every point in his [President Clinton's] career, was at the center of that strategy."(113)

This would not be the first time that Mrs. Clinton has taken a major role in trying to affect press
coverage of President Clinton's scandals:

At a meeting in the White House residence soon afterward, the first
lady, who spoke periodically with Blumenthal, asked aides to write a
report on [Post reporter Susan] Schmidt's coverage. The idea was not
only to publish the report but to formally present it to [Post Executive
Editor] Downie. … After the report was compiled by White House
attorneys at public expense, it was killed by White House press
secretary Michael McCurry and Mark Fabiani....(114)

Moreover, Ickes' claims of memory loss relating more specifically to the Lewinsky matter
involving Linda Tripp, that became public in January 1998, are especially unbelievable given that it is
his job to be knowledgeable about the matter so he can conduct damage control with the press. He
testified that "very shortly after the first reports about Monica Lewinsky became public" he's "been
doing some work with Mickey Kantor [one of the President's attorneys], but all on a voluntary basis."(115)
He testified that in doing this work he "would talk to people on the outside. . . . [t]alk to a lot of press
people and talk to supporters and others about this situation."(116) He testified that this work entails
finding out "what stories the press are interested in" and because "the press is often not fully informed
of everything that is going on," he talks to the press "to find out what stories they think are interesting,
what they're working on; and also to provide information that [he] may have that the particular press
person [he is] talking to may not have."(117) He testified that he has "kept a very close track on this
through the public presses."(118)

Apparently, as part of this work, Ickes had several conversations with Jane Mayer, to whom the
Clinton DoD illegally released Linda Tripp's private information. Curiously, his account of his
conversations with Ms. Mayer shifted drastically during the deposition. Ickes testified that since the
Lewinsky scandal broke, but before Ms. Mayer's New Yorker article about Linda Tripp was published,
he met with Ms. Mayer in his office once or twice and had several telephone conversations with her.(119)
Ickes was asked: "What did she say to you?"(120) He answered: "I don't know. I don't have the foggiest
idea. Mr. Klayman, I talk to a lot of reporters and talk to a lot of people. I can no more sit here under
oath today and tell you what I said to her and what she said to me than the man on the moon."(121) Later
he was asked: "What did you discuss during that second possible meeting?"(122) Initially, he denied any
recollection, but then admitted that they discussed Monica Lewinsky and Linda Tripp:

A: Same answer as to the first question you asked.

Q: You don't have a clue.

A: I don't recall. I talk to a lot of different people about a lot of
different things. Under oath I could not say with any certainty as to
what I talked to her about.

Q: General subject matter, talked to her about the Clinton
Administration?

A: She was working on one of several stories. I think it - yeah. The
general subject matter was the situation known as Monica Lewinsky
generally, which is a pretty broad topic, as we now, at least as I refer
to it.

Q: Did you discuss Linda Tripp with her?

A: I think she may have raised the name Linda Tripp. I don't think
there was any - whatever discussion there was, if there was any, was
short-lived because I knew nothing about Linda Tripp, other than what
I've testified to.

Q: Did she ask you whether or not you had information as to whether
or not Linda Tripp had ever been arrested?

A: I don't recall her asking me that. And - I don't recall her asking
me that. She may have, but I don't recall it.(123)

In light of all the news coverage over Ms. Tripp's arrest record and Ms. Mayer's role in
disclosing it, Ickes likely would know whether or not Ms. Mayer inquired about Ms. Tripp's arrest
record.

Therefore, given Ickes' early and continuing damage control work on the Lewinsky scandal in
sharing information with the press and keeping "a very close track on this through the public presses,"(124)
and Mrs. Clinton's reported central role in managing the political and public relations aspects of the
Administration's response, Ickes' claimed lack of recollection regarding his conversations about the
scandal with Mrs. Clinton are not believable. Since news reports indicated that Mrs. Clinton had taken
personal charge of the public relations campaign for the President during this time period, it is
unbelievable that she did not pass along directions to a trusted colleague who also was working on
exactly the same thing. For example, one would think it to be a virtual certainty that Ickes and Mrs.
Clinton would have discussed Ickes' dinner communications with Kenneth Bacon(125) and that Ickes would
have a good recollection of those discussions with her.

(8) When asked if he "ever discussed Linda Tripp with President Clinton," Ickes testified he had
no "specific" or "general" recollection(126) and that he didn't "have any recollection."(127)

The question is directly relevant to this case. Linda Tripp is a material federal witness against
President Clinton whose privacy rights were violated by a Clinton DoD political appointee, among
others, when the contents of her government file was illegally disclosed to Jane Mayer of The New
Yorker after the Lewinsky scandal became public. This Court ruled that the DoD's release of Ms.
Tripp's private information is relevant to this lawsuit. Her FBI file was also among those obtained by
the White House. The content of Ickes' conversations with the President about Ms. Tripp might reveal
information about Presidential involvement in the Tripp release.

Ickes' claim of memory loss is especially unbelievable given that: 1) Ickes was working for the
President, through one of the President's attorney's, Mr. Kantor, to do damage control work on the
Lewinsky scandal by sharing information with the press(128) and keeping "a very close track on this
through the public presses,"(129) and 2) Ms. Tripp is at the heart of a scandal that could topple President
Clinton's Administration. Common sense dictates that Ickes should have been able to give a direct yes
or no answer to this question, and the only believable answer would be "yes." It is inconceivable that
he would not have discussed the subject matter of his job with the person for whom he was asked to do
the job. Moreover, if he had such a discussion with the President, it seems inconceivable that he would
not have a clear memory of it. If he did not have such a discussion with the President, he should have
been able to give a direct "no" as his answer.

(9) Ickes testified he had a dinner with Kenneth Bacon and Georgetown law professor Steven
Cohen within the last few months.(130) When asked what "specifically about Linda Tripp was discussed"
at the dinner, Ickes testified: "I knew nothing about Linda Tripp and I think I may have asked Ken when
she came over to the Pentagon. But other than that, we did not spend any time talking about her."(131)

In light of Bacon's role in illegally releasing Ms. Tripp's private information to reporter Jane
Mayer(132) and Ickes' conversations with Ms. Mayer prior to that release,(133) the likely role of Ickes as a
link between the White House and the Clinton DoD regarding the release needs to be explored by
Plaintiffs.

Ickes' claim that he "knew nothing" about Ms. Tripp, whose tape recordings made her a central
figure in the Lewinsky scandal, is not credible given press coverage of Ms. Tripp and his testimony that
"very shortly" after the Lewinsky scandal became public he's been working with Michael Kantor in
finding out what the press is working on, providing information to the press and keeping "a very close
track on this through the public presses."(134) In the first two days following its initial story on the
Lewinsky scandal The Washington Post published two stories giving much detail about Ms. Tripp,
including her past testimony about the Vincent Foster death, her job as a secretary in a classified unit of
the U.S. Army Intelligence Command at Fort Meade and the fact she worked at the same Pentagon
department as Ms. Lewinsky, where the boss was Bacon.(135) Thus, it is highly unlikely Ickes knew
"nothing" about Ms. Tripp when he had dinner with Bacon and Mr. Cohen, if he had been doing the
work for Mr. Kantor he testified about.

Also, it is nearly impossible to believe that Ickes - as one responsible for keeping "a very close
track on this [the Lewinsky scandal] through the public presses"(136) - would not have been intensely
interested in learning more about Ms. Tripp from Bacon than simply "when she came over to the
Pentagon."(137)

(10) Although he testified that since January 1998, he talked to the President and Mrs. Clinton
about Mr. Starr, he testified that he "can't remember generally or specifically" what was discussed about
Mr. Starr.(138)

The President and Mrs. Clinton's discussions with Ickes about Ken Starr are directly relevant
to this case. In addition to the Lewinsky matter, Mr. Starr has been assigned to investigate Filegate and
the Tripp release. The President and Mrs. Clinton's comments about the man assigned to investigate
the subject of this lawsuit (in which Mrs. Clinton is a defendant) and a similar incident deemed relevant
to this case, could contain information incriminating to the President and Mrs. Clinton.

Ickes should have been able to remember what was discussed about Mr. Starr. Mr. Starr has
been the President's most visible legal adversary for several years, especially within the last several
months because of the Lewinsky scandal. Mr. Starr has had many people from the White House testify
before the Grand Jury investigating the Lewinsky scandal. The President's attorney, David Kendall, has
hired private investigators, smeared Mr. Starr in the media and also filed formal ethics and criminal
complaints against him. White House spokespersons are constantly besmirching Mr. Starr and urging
him to end his investigation as the White House makes unprecedented privilege claims that have delayed
Mr. Starr's investigation. Given that it is Ickes' job to keep "a very close track on this [the Lewinsky
and other Clinton scandals] through the public presses,"(139) for Michael Kantor, it is unbelievable that he
would not have a recollection of his conversations with the President and Mrs. Clinton about Mr. Starr.

(11) Although Ickes testified that since January 1998, he talked to Rahm Emanuel "[v]ery
infrequently; probably not over three or four times,"(140) he testified he could not recall if he talked to Mr.
Emanuel about Linda Tripp or Monica Lewinsky.(141) Although he testified he talked to Mr. Emanuel
about Kenneth Starr, he testified he had "no idea" what he said about Mr. Starr.(142)

It is important for Plaintiffs to learn the substance of any communications Ickes had with Mr.
Emanuel. Mr. Emanuel is a major White House spokesman who is frequently seen on the Sunday
Morning news talk shows. If Ickes had any role in being a White House link to the Clinton DoD
regarding the release of Ms. Tripp's private information, his communications with Mr. Emanuel likely
could provide evidence of such a role.

Mr. Emanuel has made many public statements about the Lewinsky scandal and Mr. Starr. Ickes
works for Michael Kantor in doing damage control on the Lewinsky scandal. It defies belief that Ickes
could not recall whether he talked to Mr. Emanuel about the major news topic of the last five months
that has each of them deeply involved with the press. This is especially true given that the scandal
threatens the Clinton Presidency. Ickes' failure to recall what was said about Mr. Starr also rings untrue
for the same reason.

(12) One of Ickes' most blatant examples of feigned memory loss involves Plaintiffs' subpoena.
Although he received the subpoena a week and a half before his testimony,(143) Ickes claimed that service
was improper and that he appeared at his deposition voluntarily.(144) Yet, when asked when he gave the
subpoena to his attorney, which had to be within the week and a half prior to the deposition, he claimed
he could not recall.(145)

Ickes' testimony clearly is not believable. Incredibly, Ickes testified that he could not recall a
significant event that occurred only within the last week and a half before his testimony. He testified he
could not even recall enough to answer by saying only "roughly speaking" or to answer whether it could
have been within "weeks," although he testified he received the subpoena only one and a half weeks
earlier!

(13) Although Ickes testified that he "may have" talked to various people about Joe diGenova,(146)
he testified that he didn't "know" what he discussed about Mr. diGenova.(147) When asked to identify the
reporter with whom he discussed Mr. diGenova, he testified: "Don't' know when, don't know where,
don't know what was said."(148) When asked if he ever discussed the issue of whether or not Mr.
diGenova and his wife (Victoria Toensing) could simultaneously work for CNBC and Congress, he
testified: "I may have. Don't recall if I have. I haven't paid much attention to them, to tell you the
truth."(149) When asked who he discussed it with, he testified: "Don't know. Don't recall."(150)

The questions about Mr. diGenova and his wife are relevant to this case because if the Clinton
Administration has been collecting private information about them from government files, this would be
part of the Administration's pattern and practice of violating privacy rights in order to intimidate its
perceived adversaries. There is evidence that Mr. diGenova and his wife may have been targeted by the
White House and its investigators for intimidation because of their expressed views about the Clinton
Administration and that the White House tried to deceive the public about this intimidation.

Mr. diGenova and his wife are frequent television talk show guests regarding the Clinton
scandals. They made additional news when Mr. diGenova announced on NBC's "Meet the Press" that
he had information that White House allies were investigating him and his wife.(151) Further controversy
erupted after the White House "flatly denied that DiGenova and Toensing were the subject of any
inquiry," but then "Clinton lawyers David Kendall and Robert Bennett acknowledged that they had
retained [Terry] Lenzner's investigative firm," and only denied that they have investigated "the personal
lives of" Mr. diGenova and Ms. Toensing, noting the availability of "public information."(152) Again, it
was Ickes' job to follow all of this and his claimed lack of memory about Mr. diGenova and his wife is
not believable.

There is an additional reason Ickes should be able to recall these conversations. Mr. Ickes might
be properly and legally investigated by Mr. diGenova and his wife. They work for the House Committee
on Education and the Workforce investigating the Teamsters union.(153) Their investigation might involve
Ickes since he faces a possible perjury investigation sparked by Teamsters memos contradicting his
Senate testimony denying that the White House helped the Teamsters during a labor dispute.(154) This
would certainly be good reason for Ickes to be very interested in Mr. diGenova and his wife.

(14) Although he testified that he had conversations with various people(155) in which Richard
Mellon Scaife was discussed, that "[p]robably" included discussions of the Arkansas project,(156) he
testified that he didn't "recall the details"(157) of those conversations and when asked what he was told
about Mr. Scaife during those conversations, he testified: "I don't have the fog - I don't have any
recollection with any specificity about what they said about Mr. Scaife or who said it or when they said
it."(158)

The question is relevant because if the Clinton Administration has been collecting information
about Mr. Scaife from government files, this would be part of the Administration's pattern and practice
of violating privacy rights in order to intimidate its perceived adversaries. It is common knowledge that
the White House has been vilifying Mr. Scaife for several years and has tried to portray him as one of
the leaders of Mrs. Clinton's "vast right-wing conspiracy." Ickes' role as a White House damage control
ally would make him very familiar with Mr. Scaife and it is unbelievable that he would have so little
recollection of discussions about him.

(15) Although he testified that he "may have discussed" Stuart Taylor with various people, he
testified that he didn't "remember who I talked to about it or what was said."(159)

The question is relevant because if the Clinton Administration has been collecting information
about Mr. Taylor from government files, this would be part of the Administration's pattern and practice
of violating privacy rights in order to intimidate its perceived adversaries. Mr. Taylor is a well-respected
legal writer who wrote a major article in late 1996 that caused the dominant media to take Paula Jones'
charges seriously.(160) He has appeared on numerous television talk shows discussing the Jones case and
the more recent Lewinsky scandal. Ickes' job requires him to pay attention to what Stuart Taylor tells
the public. Mr. Taylor has even been in the news because of his possible employment by Mr. Starr's
office.(161) Ickes' failure to recall who he talked to about Stuart Taylor and what was said is not credible.

(16) Ickes' demeanor, showing his hostility to the deposition process and this Court, also
provides additional circumstantial evidence that his alleged memory loss is feigned.(162) This is evident
from portions of his testimony where he did not claim any memory loss, but made the deposition process
as difficult as possible, displaying a general attempt to withhold information by stressing non-responsive
documents and trivial information, including a particularly graphic example when he was asked about
notes and correspondenceon the first floor of his residence. In response, he immediately changed the
subject to his daughter's artwork and paintings on the wall:

Q: Where do you store the documents in your house?

A: Well, we have books upstairs. We have various documents upstairs.
There's documents on the fourth floor, the second - let's see how many
floors are there. There's the basement. . . .

. . .

Q: Where are they stored?

A: In various parts.

Q: How are they stored, in boxes?

A: In various parts. Well, the wrapping paper I keep sort of on the floor
in the boxes. The newspapers, I keep some in boxes, some on the floor.
The old magazines, some of those I keep on the shelf. Bubble paper,
does that come within the document - yeah, bubble paper we keep down
there, also. But you know, it's around different parts of the basement.
There are some notes there. There are some financial records there.
There are some letters there. There are some books there.

Q: What documents do you keep on the first floor?

A: Roughly, the same answer. I mean there are books there. Primarily
books I would say, on the first floor. There's some -

Q: But also notes and correspondence.

A: Yeah, and my daughter has some drawing paper there. She does a lot
of artwork. There's some pictures on the walls. Those are documents,
I think, aren't they? Yeah. There are also some videotapes on the first
floor and some audiotapes on the first floor. Oh, there are some CD
disks on the first floor.

Q: The third floor, what do you keep on the third floor?

A: A combination of the stuff that I've just talked to you about, with the
exception of the wrapping paper. We generally keep that down, and the
bubble paper, we generally keep that down in the basement.

Q: Fourth floor?

A: Fourth floor, not many documents up there, mostly - there's some
wrapping paper up there, I don't want to mislead you on the wrapping
paper. There's some wrapping paper up there. There are not many notes
up there. There are some magazines, basically National Geographic and
the like.

Ickes' explanation for this testimony is not credible. Ickes quoted the definition of "document"
that was included in his subpoena and sarcastically claimed that he was trying to be responsive to the
subpoena.(164) However, the subpoena did not request every document in Ickes' possession, custody or
control, but only those documents "concerning or relating to" various specific subjects, including access
to and disclosure of FBI files and communications with specific individuals and offices, etc.(165) His
daughter's artwork and the family's wrapping and bubble paper is not included within any of the subjects
for which the subpoena requests documents, yet Ickes chose to testify about them, thereby showing his
hostility to the deposition process, further demonstrating that his alleged memory loss was feigned and
showing disrespect to the Court.

3. The Court Can Issue an Order to Show Cause to Ickes Regarding Perjury.

The Court has authority to issue an order to show cause to Ickes as to why he should not be held
in criminal contempt for perjury because of his feigned memory loss. As stated by Judge Learned Hand:
"The power of the court to treat as a criminal contempt a persistent perjury which blocks the inquiry is
settled by authority in this circuit."(166) Federal Rule of Criminal Procedure 42(b) says that a "criminal
contempt . . . shall be prosecuted on notice." Such notice can be given by "an order to show cause,"
according to the rule.

Moreover, if Ickes violates an order to testify truthfully by feigning memory loss, the Court can
impose civil contempt sanctions on him pursuant to 18 U.S.C. § 1826(a).(167)

B. Ickes Should be Ordered to Answer Questions About Kathleen Willey.

Ickes was improperly prevented from answering questions about a conversation he had with
President Clinton regarding Kathleen Willey, whose letters were released from White House files to the
public.(168) Terry Good, the Director of the White House Office of Records Management, testified that
his office received a request, probably from the White House Counsel's office, to look for a letter written
by Ms. Willey.(169) He said there was more than one letter and they were provided to the White House
Counsel's office.(170) The letters were retrievable by entering her name in a database program and
searching, according to Good.(171) The release of Ms. Willey's letters was a violation of the Privacy Act.
This Court has ruled that the Willey release is relevant to this case.(172)

When discussing his conversations with the President,(173) Ickes was asked, "You've talked to him
about Kathleen Willey?"(174) Ickes answered, "I think we did have a very brief conversation about her at
one point."(175)

Thereafter, Ickes was asked the following questions: "What did you discuss about Kathleen
Willey?"(176) "Did you discuss with regard to the President the letters that Kathleen Willey had written
to him?"(177) "Did you discuss with the President the release of those letters to Kathleen Willey -- from
Kathleen Willey, to the public?"(178) "But you did discuss the contents of the Kathleen Willey letters with
the President. Correct?"(179)

Clinton DoJ attorney Elizabeth Shapiro instructed Ickes not to answer these questions,
proclaiming that the conversation was "subject to a variety of privileges"(180) and "could potentially be a
Presidential communication, it could be deliberative, it could be a number of privileges."(181)

Contrary to Ms. Shapiro's instructions, Ickes' conversation with the President about Kathleen
Willey is not privileged. First, a party claiming a privilege bears the burden of establishing the facts
necessary to support the privilege's application in a particular situation.(182) Ms. Shapiro failed to provide any factual basis for the privileges she claimed. Second, as this Court
has stated, Executive privilege requires "an express invocation of the privilege by the President…."(183) No such invocation has occurred here. Third, the deliberative process privilege "disappears
altogether when there is any reason to believe government misconduct occurred"(184) and the facts of this case show that much government misconduct occurred with regard to the illegal
acquisition of FBI files by the Clinton White House, the illegal release of private information from Linda
Tripp's personnel file at the Clinton DoD and the violation of Kathleen Willey's privacy rights. Finally,
the claim of privilege is not credible in light of Thomas McLarty's testimony about his conversation with
the President about Kathleen Willey, without any claim of privilege.(185)

III. CONCLUSION.

Harold Ickes is the Clinton Administration's political hit-man. He knows the secrets and knows
how to keep them, even if it means committing perjury.

Ickes' deposition tactics are part of the Clinton Administration's continued pattern of obstructing
the truth. His inadequate document search and feigned memory loss about important conversations he
should have remembered are consistent with the improper conduct Plaintiffs have had to battle
throughout the history of this case.

Even worse than the egregious conduct of George Stephanopoulos, Ickes' document search
clearly was inadequate. Ickes cannot be trusted to make a reasonable search for responsive documents.
Therefore, Plaintiffs respectfully request that Ickes be ordered to produce all of his documents from the
77th Street storage facility and the Fire Island location, and all of the documents he removed from the
White House, for production to a special master appointed by the Court pursuant to FRCP 53 for
review. This should be done at Ickes' expense.

Plaintiffs also request that he and possibly others, be ordered to give further testimony about any
new document search he conducts that will allow Plaintiffs to question under oath whoever does the
search. In the event that new documents are produced, Plaintiffs request that they be allowed to conduct
further deposition questioning of Ickes about those documents.

Ickes' huge claims of memory lapse and evasive non-responses (264) are not credible.
Therefore, the Court respectfully should find that Ickes' testimony of memory loss is not believable and
is untruthful and he should be ordered to submit for redeposition. The Court also should institute
criminal contempt and perjury proceedings to preserve the integrity of the judicial process and to punish
Ickes for his blatant misconduct and deceit.

Additionally, Ickes also should be ordered to answer questions about his conversation with
President Clinton regarding Kathleen Willey.

Finally, the Court should award Plaintiffs attorneys fees and costs, against Ickes and his counsel,
for the first and second Ickes depositions, additional document review, as well as attorneys fees and
costs for the preparation and filing of this motion.

Respectfully submitted,

________________________

Larry Klayman, Esq.

DC Bar No. 334581

________________________

Allan J. Favish, Esq.

JUDICIAL WATCH, INC.

501 School Street, S.W.

Suite 725

Washington, D.C. 20024

(202) 646-5172

Attorneys for Plaintiffs

LOCAL RULE 108(m) CERTIFICATE OF COUNSEL

I certify that on August 21, 1998, I telephoned counsel for non-party Harold Ickes, Amy Sabrin,
Esq., regarding this motion. Her secretary, Mary Carlton, told me that Ms. Sabrin was not in and that
I could leave a voice mail for Ms. Sabrin. I then asked for Mr. Ickes' other attorney, Lily G. Arbab,
Esq., and was told that she was not in either. I then left a voice mail message for Ms. Sabrin explaining
the nature of this motion and that I was calling her under local rule 108.

On the same date, I also telephoned counsel for the U.S. Dept. of Justice, Elizabeth Shapiro, Esq.
Her voice mail message instructed me to contact her colleague at the DoJ, Julia Fayngold, Esq. I told
Ms. Fayngold what Plaintiffs were requesting in this motion, including an order that Mr. Ickes be
compelled to answer questions about his conversation with the President regarding Kathleen Willey,
which Ms. Shapiro prevented Mr. Ickes from answering. Ms. Fayngold said she opposes the motion.

____________________

Allan J. Favish, Esq.

CERTIFICATE OF SERVICE

I hereby certify that on August 21, 1998, a true and correct copy of the foregoing Motion to
Compel Further Testimony and Further Production of Documents from Harold Ickes, for Appointment
of a Special Master, for Criminal Contempt and Perjury Proceedings, and for Sanctions, Including
Attorneys Fees and Costs, was served by first class mail, postage prepaid, on the following:

Attorneys for Defendants Federal Bureau of Investigation and Executive Office of the President: